Guarding safety in manufacturing

Guarding of machinery is the most fundamental of the requirements caught by occupational health and safety (OHS) obligations. The need to guard machinery has been part of the NSW regulatory framework since 1896. Yet in 2000/01, there were 353 cases of traumatic amputation of a limb at work in Australia.

When it was first introduced in Great Britain, guarding legislation was accused of threatening to annihilate manufacturers. Over a century later, the same arguments seem to be put forward as the reason for failure to comply.

OHS legislation in all states and territories imposes strict obligations on employers to ensure the health, safety and welfare of their employees at work and non-employees (such as contractors, labour hire workers and visitors) at their place of work. The scope and extent of that duty requires employers to systematically identify hazards to health and safety arising from their workplace, systems of work and plant and substances used at work and to eliminate or minimise the risks arising from such hazards. This exercise is expressly required by New South Wales regulations.

Breaches of OHS obligations attract heavy penalties. In NSW, repeat corporate offenders face a maximum penalty of $825,000. In the ACT, under new industrial manslaughter offences, corporate offenders face a maximum penalty of $1 million. In addition, directors and senior managers can also be held personally liable for breaches of OHS legislation by their company and face personal penalties and in most jurisdictions, can also face imprisonment. In Victoria and South Australia, for example, convicted directors face a maximum of 5 years' imprisonment. Under the ACT industrial manslaughter provisions, directors face a maximum of 20 years imprisonment if convicted.

Not surprisingly, manufacturing has always been considered a high hazard industry. Factories were the first of the Australian workplaces to be regulated and remain largely the focus of regulators' attention across Australia. Sadly, despite its long history of regulation, guarding remains a major problem in factories. This has been an issue of concern for the Courts.

Courts have made no secret of the fact that they take a very dim view of employers who fail to adequately guard machinery, and such cases have traditionally attracted penalties in the higher range of available penalties.

In Nguyen v Quality Bakers Australia Ltd [1999] NSWCIMC 103, the Chief Industrial Magistrate said at page 4:

"It is disappointing to see these three charges before the Court with the main failure in each being the failure to securely fence all dangerous parts of the machine. It is further disappointing when one looks at the prior convictions, the majority of which involve guarding breaches. The defendant must recognise that it is an absolute obligation to securely fence all dangerous parts of machinery. Securely fence means to provide an effective barrier to prevent access to the dangerous parts. This duty on the occupier of a factory has been in place for over a century in New South Wales and became an absolute duty in 1942."

More recently, in Inspector Brandie v Unimin Australia Ltd [2003] NSWCIMC 68 the Chief Industrial Magistrate again commented at page 6:

"Guarding of dangerous parts of machinery has been in place in this State for over 100 years. Its purpose is to protect, not only the conscientious worker, but also the worker who may on occasions be inadvertent or careless from injury. Although the subjective features mitigate highly in the defendant's favour this is a large corporation with the capacity to ensure the safety of its workforce. Furthermore, the accident was avoidable as indicated by the simple and effective steps taken after the incident. This type of accident is not rare, extraordinary or unusual in this jurisdiction. Guarding cases are the traditional and unfortunately the normal work of this court."

The Chief Industrial Magistrate also made similar comments in Inspector Ch'g v Reckitt Benckiser (Australia) Pty Ltd [2003] NSWCIMC 17 where he noted at page 5 that:

"The requirement for employers and other persons to identify and safely guard all dangerous parts of machinery used at work has been recognised for decades in decisions of the Commission and its predecessors, as well as in the Chief Industrial Magistrates Court and Local Court... The duty imposed on an employer under s.15(1) to ensure the health, safety and welfare at work of employees is absolute. Such duty "to ensure" is to be construed as meaning to guarantee, secure or make certain."

Furthermore, the obligation to ensure the health and safety of employees is not limited to diligent or obedient employees but extends equally to inattentive, careless, foolish, hasty, inadvertent, unreasonable and disobedient employees. Indeed, it has long been recognised that the purpose of guarding dangerous parts of machine is precisely to prevent injury to persons who operate machines or may be in the premises and come in contact with dangerous parts of the machinery through inadvertence or carelessness.

Manufacturers must ensure that all plant and equipment in their factory is adequately guarded. A risk assessment of machinery must be conducted on a regular basis and, in any event, before a machine is installed, erected, commissioned, or altered. Operators and supervisors should also be trained in risk management methodology to allow them to adopt that approach to every aspect of their work.

Manufacturers have had over a century to get used to the idea of guarding machinery. They can hardly claim ignorance of the law now.

Michael Tooma

Michael Tooma is a partner with national law firm Deacons specialising in OHS law. He is the author of Tooma's Annotated Occupational Health and Safety Act 2000: NSW, LBC, now in its second edition. He is also a lecturer in OHS law at the University of New South Wales and Wollongong University. Michael will be speaking at The Safety Conference, Sydney Showground, 13-15 October 2004.